1. This is an application under Article 134 of the Constitution praying for a certificate 'that the case is a fit one for appeal to the Supreme Court.'
2. The material facts are as follows: On the 20th August 1950, there was riot in one of the local cloth Mills in Indore. As a result of certain incidents which followed this riot one Deputy Superintendent of Police, Joshi and a Police Constable Kesrisaran lost their lives and several other Police men sustained injuries. Three cases were started by the Police in connection with this riot and the incidents which followed:
(1) A riot case relating to the riot which took place on the Mill premises.
(2) A case relating to the incident which resulted in the loss of life of Deputy Superintendent of Police Joshi on the public road at a short distance from the Mill gate; and
(3) A case relating to the murder of Constable Kesrisaran which took place at a spot some distance remote from where Deputy Superintendent Joshi was assaulted.
3. 14 persons were sent up for trial in connection with the case relating to the incident which resulted in the loss of life of Deputy Superintendent of Police Joshi. Of these 5 were convicted by the Sessions Judge, Indore and the rest acquitted. 2 of these 5 namely Babulal Tendwa and Madanlal were convicted under Section 302/149, I.P.C., and also under Section 148, I.P.C. Each of them was sentenced to death for the first mentioned offence and to three years' rigorous imprisonment under Section 148, I.P.C. The remaining three were acquitted of offences under Section 302/149, I.P.C. and 148, I.P.C., but were convicted under Section 326/149, I.P.C., and sentenced to ten years' rigorous imprisonment each.
4. Three appeals were preferred against the order passed by the learned Sessions Judge:
(1) Criminal Appeal No. 84 of 1951 by Babulal Tendwa and Madanlal against their conviction for offences under Section 302/149, I.P.C., and under Section 148, I.P.C.
(2) Criminal Appeal No. 88 of 1951 by Lalta Prasad, Honsla Prasad and Bapu Talwala against their conviction under Section 326/149, I.P.C.;
(3) Criminal Appeal No. 108 of 1951 was preferred by the State against Lalta Prasad, Honsla Prasad and Babu Talwala in respect, of their acquittal under Section 302/149 I.P.C.
5. Criminal Appeal No. 84 of 1951 preferred by Babulal Tendwa and Madanlal was dismissed and the reference made by the Sessions Judge for confirmation of the death sentence passed upon them was accepted. Criminal Appeal No. 88 of 1951 preferred by Lalta Prasad, Honsla Prasad and Babu Talwala was also dismissed. Criminal Appeal No. 108 of 1951 preferred on behalf of the State was accepted. The acquittal of the three appellants Lalta Prasad, Honsla Prasad and Babu Talwala by the Sessions Judge under Section 302/149, I.P.C., was set aside and instead of Section 326/149, I.P.C., they were convicted under Section 302/149, I.P.C., and sentenced each to transportation for life.
6. Mr. Shukla one of the counsel who appeared for all these five persons, both in the Court of Sessions as well as in the' High Court, has made the present application under Article 134 of the Constitution praying for a certificate that the case is a fit one for appeal to the Supreme Court. Even if we disregard the appeal preferred on behalf of the State (Criminal Appeal No. 108 of 1951) we have two separate appeals Nos. 84 and 88 of 1951, the former on behalf of Babulal Tendwa and Madanlal and the latter on behalf of the three remaining convicted persons. Curiously enough however Mr. Shukla has treated both of them as one and made a common application on behalf of the 5 convicted persons praying for a certificate under Article 134(c) of the Constitution. This is irregular. This was not noticed at the time of hearing but my attention was attracted to it while dictating the present order. I will deal with each of these appeals - Criminal Appeal No. 84 of 1951 and 88 of 1951 separately.
7. In order to appreciate properly the points raised by Mr. Shukla it is necessary to give a few facts. I will mention only such of them as are necessary for the purposes of the present application.
8. As already stated, there was a riot by the mill workers of the Malwa Mill on the morning of the 20th of August 1950. The riot started inside the Mill premises some time before 9 A.M. At about 9 A.M. the Manager put up a notice announcing that the Mill was closed, Sub-Inspector of Police, Ibrahim who was already there telephoned to Police Station Pardeshipura requesting the Station Officer to come over to the Mill. Accordingly Sub-Inspector Narayan Singh, the Station Officer went there. He tried to persuade the women workers to go back to their department and start work, but they would not listen to him. As time passed the riot grew worse. At about 9-15 A.M. Deputy Superintendent Joshi along with Sub-Inspector Chhoteram Singh also came up to Malwa Mill. He tried to pacify the labourers but was unsuccessful. Finding that the labourers were not pacified he ordered the Police to disperse the crowd.
Thereupon the labourers began to shower brickbats and stones on the Police. Deputy Superintendent Joshi, Sub-Inspector Narayansingh and Sub-Inspector Chhotaramsingh fearing that the small force they had, might be overwhelmed by the mob took shelter near the gatekeeper's room. Deputy Superintendent Joshi and Sub-Inspector Narayansingh were both injured and were bleeding. At this stage under orders from Deputy Superintendent Joshi, Narayansingh fired 5 shots from the revolver. Accidentally he fell down while doing so. Thereupon Deputy Superintendent Joshi took over the revolver from him and fired two more shots. Narayansingh got up and two more shots were fired. 2 or 3 labourers were hit.
Deputy Superintendent Joshi thereupon asked Sub-Inspector Narayansingh to go and get more men. Narayansingh came out of the main gate with his revolver in hand. He was followed by Deputy Superintendent Joshi. Joshi had nothing but a stick in his hand at that time. Walking close by the wall of the Mill, Sub-Inspector Narayansingh made his way towards Pardeshipura Police Station. Deputy Superintendent Joshi on the other hand came on the main road outside the Mill gate. A large number of labourers had gathered there. Some 25 or 30 labourers from inside the Mill followed Joshi. This party included the 5 applicants before us.
9. The batch of 25 or 30 labourers which followed Deputy Superintendent Joshi was shouting for his blood. He was surrounded by these labourers at a short distance from the Mill gate and assaulted with iron bars and bamboo sticks. He fell down on the ground and became unconscious. Immediately news of the assault on Deputy Superintendent Joshi reached Dr. Nagu a Medical Practitioner of the town who has dispensary at a distance of 100 or 150 feet from the spot where Joshi was lying. Dr. Nagu hurried to the place of occurrence and lifted the unconscious Police Officer with the help of another person into his jeep and removed him to Maharaja Tukojirao Hospital. Deputy Superintendent Joshi expired in the Hospital at about 1 P.M.
10. All the applicants before us pleaded not guilty. They denied the prosecution version. Their case was that after a number of shots were fired by the Police to quell the riot inside the Mill premises and some labourers were injured, the persons standing outside the Mill gate who could not see what had actually happened lost their head and being infuriated set upon Deputy Superintendent Joshi at a short distance from the Mill gate. He dropped down on the ground and thereupon the mob ran away. Meanwhile some person came out of the restaurant known as 'Kailash Hotel' with a burning faggot in his hand and struck Joshi with it. Simultaneously there arrived on the spot one Banarasi Pehalwan with two or three other companions. It was suggested that Banarasi pehalwan being a Goonda naturally there was enmity between him and Deputy Superintendent Joshi. Taking advantage of the circumstances Banarasi Pehalwan and his companions also gave him a number of blows till Dr. Nagu arrived on the spot In his Jeep and then they ran away.
This version was however not accepted and we have held that the prosecution version was correct. This was that Sub-Inspector Narayansingh and Deputy Superintendent Joshi were followed by a crowd of labourers from inside the Mill gate and as Joshi reached what is popularly called 'Gol Chakkar' it was some members of that crowd and not those who were standing round the 'Gol Chakkar' from before, that started the attack upon the deceased. We have further held that it is possible that once the attack upon Joshi had started, some men from amongst those that were standing there already also joined in it; or ns suggested by the appellants Banarasi who came on the scene later may have also joined the assailants and inflicted some of the injuries that were found on the person of Deputy Superintendent Joshi. I have observed at page 33 of my judgment:
But it is not correct to say that the attack on Joshi was not started by the crowd that followed him from inside the Mill.
11. I will now proceed to consider the points raised by Mr. Shukla. I will first deal with the application in so far it relates to the disposal of Criminal Appeal No. 84 of 1951 and confirmation of the death sentences passed upon Babulal Tendwa and Madanlal.
12. Though the application mentions a large number of grounds only three main points were urged by the learned Counsel at the hearing:
(1) That the Court of Sessions which tried the case was not properly constituted;
(2) That a person cannot be charged twice for the same offence, and;
(3) That Babulal Tendwa and Madanlal could not be held responsible for what was done by Banarasi and his companions or the person who is said to have come out with a burning faggot from 'Kailash Hotel'.
13. I will deal with these points in the order In which they have been stated.
14. After the record was received by the Sessions Judge from the Committing Magistrate's Court he summoned 8 assessors for the date fixed for the commencement of the trial. Unfortunately, however, only one of the assessors summoned was present In Court on the date fixed. In the absence of the required number of assessors, the learned Sessions Judge chose two more assessors from the persons who were present in the Court compound and whose names were found in the list of assessors. The trial was held with the aid of those three assessors.
15. It was pointed out by Mr. Shukla that under Section 328 of the Code of Criminal Procedure every summons to a juror or assessor must be in writing and that under Section 284 the assessors who are to assist at the trial must be chosen from the persons summoned to act as such. In the present case, it appears that no written summonses were issued to the two assessors who were chosen from amongst those present in the Court compound. It was contended by Mr. Shukla that this vitiates the trial. This contention was raised before us at the hearing of the appeal and was rejected by us.
16. It was not contended by the learned Counsel that the failure to literally comply with the provisions of Section 284 of the Code of Criminal Procedure had resulted in any prejudice to the accused. They contended however that the provisions of Sections 284 and 328 Criminal P.C. were mandatory and the failure to observe them literally vitiated the trial. We rejected this contention.
17. The principles which should guide thus Court in granting a certificate of fitness cannot be different from those which the Supreme Court had adopted for itself in granting special leave to appeal against decisions of High Court in criminal cases. It was laid down in the case of Pritam Singh v. State AIR 1950 SC 169 that:
Though the Supreme Court was not bound to follow the decisions of the Privy Council too rigidly...yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave.
Their Lordships further observed that:
Generally speaking, Supreme Court will not grant special leave unless it is shown that exceptional and special circumstances exist and that substantial and grave injustice has been done.
18. Once it is conceded that no prejudice was caused to the accused any irregularity in choosing the assessors should, in my opinion, not be a ground which would justify us in granting a certificate of fitness under Article 134 of the Constitution.
19. The present applicants were tried in what I have called the riot case in an earlier portion of this order. It was contended by Mr. Shukla that as the murder of Deputy Superintendent Joshi was a part of the same transaction i.e., riot in the Malwa Mill, his clients could not lawfully be put on trial a second time on the same facts. We have given the grounds for rejecting this contention. They are found at pages 17 and 18 of my Judgment. I have nothing to add to them. The point appears to me to be devoid of substance and accordingly cannot justify the grant of a certificate of fitness under Article 134 of the Constitution.
20. The following extract from my judgment will show the view of the case which I have taken:
I have no hesitation in accepting the prosecution version that Sub-Inspector Narayan Singh and Deputy Superintendent Joshi were followed by a crowd of labourers from inside the Mill gate and as Joshi reached the 'Gol Chakkar' it was some members of that crowd, and not those standing round the 'Gol Chakkar' from before, that started the attack upon the deceased. Naturally the number that formed the crowd which followed the Police Officer from inside the Mill gate has not been definitely ascertained. Most of the witnesses put it at between 30 and 40. Constable Khanchand however says that it was a much larger number. May be that once the attack upon Joshi had started some men from amongst those that were standing there already also joined in it; or as suggested by the appellant Banarsi who came on the scene-later may have also joined the assailants and inflicted some of the injuries that were found on the person of Deputy Superintendent Joshi. But it is not correct to say that the attack on Joshi was not started by the crowd that followed him from inside the Mill.
21. The point sought to be made by Mr. Shukla was that alter inflicting some injuries upon Deputy Superintendent Joshi the present applicants left the place and some other persons inflicted further injuries upon the unfortunate Officer after the present applicants had left. Mr. Shukla argued that his clients cannot be held liable for the injuries which were inflicted after they left the place. In view which I have taken the whole incident from the time that Sub-Inspector Narayansingh and Deputy Superintendent Joshi came out from the Malwa Mill gate followed by 25 or 30 labourers till he was assaulted and later up to the arrival of Dr. Nagu was one transaction and all those who-participated in the assault upon the deceased Police Officer were members of one unlawful assembly. The mere fact that some of the members of that assembly ran away after inflicting one or two injuries each upon the deceased cannot absolve them of the responsibility for the death of Deputy Superintendent Joshi even though it was not the direct result of the injuries inflicted by any one of the present applicants but was the cumulative result of the injuries inflicted by them and other members of the same unlawful assembly. It is impossible to dissociate the act done by one member of an unlawful assembly from the acts of other members of the same assembly if all those acts form part of the same transaction.
22. None of the grounds mentioned above would in my view of the matter, justify the grant of a certificate of fitness of the case for an appeal to the Supreme Court.
23. Whatever I have said about Criminal Appeal No 84 of 1951, applies also to the Criminal Appeal No. 88 of 1951 as both the cases were treated as one by Mr. Shukla counsel for the applicants.
24. The application is accordingly rejected.
25. I agree.